# SCOTUS rules against Arizona campaign finance law **URL:** \ **Category:** Great Debates\ **Created:** [June 28, 2011, 5:33pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164 "2011-06-28T17:33:21Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 29, 2011, 4:30pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/41 "2011-06-29T16:30:10Z")
I think it allows you to do lots of things. I do not think it allows you to give money to electoral campaigns. I think, as a matter of public policy, that you _should_ be able to do that; I just don’t think the First Amendment comes into it. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 29, 2011, 4:52pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/42 "2011-06-29T16:52:22Z")
> [@jtgain](#): > > If I wish to give $100 to my preferred candidate, but know that the state will just give $100 to his opponent in response, that cancels out my speech and will make me not want to waste my money. That’s only one step removed from banning free speech and I can’t believe the outrage at this decision. This is a horrendous view of speech. Speech is about increasing information out there - it isn’t cancelled by being opposed. Seriously look at what you are saying here and I think you’ll realize just how fundamentally in opposition to the purpose of the First Amendment it is. Now the decision here may well be correct, but this is absolutely not the grounds on which it is correct. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [June 29, 2011, 4:56pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/43 "2011-06-29T16:56:09Z")
> [@Fenris](#): > > Let’s try an accurate one. The Times outsells the Post by, say, 3 to 1\*. So the Post has less freedom of speech than the Times (by your reasoning) Therefore, to make the playing field equal, the government should give the Post money to equal the difference in their sales. I wouldn’t say “should give”, but could they? Sure. If the government decides that it wants more newspapers to provide diversity of news sources, for example, and they create a plan whereby they give a certain amount of money (or even a variable amount) to any newspaper that wishes to publish in the state (note here that it doesn’t matter what they intend to say), I see no reason why this is a first amendment problem. It in no way limits speech or the press. Now, it’s possibly (I’d even say probably) a stupid law, but not unconstitutional, IMO. Put differently, I don’t agree that the government diluting the impact of your speech is in violation of the first amendment. And that’s even before you get to whether monetary political donations should even be considered “speech”. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [June 29, 2011, 5:02pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/44 "2011-06-29T17:02:08Z")
> [@Bricker](#): > > No. Because vouchers don’t implicate the First Amendment’s speech clause with anywhere near the same direct effect that political speech has. _Zelman v. Simmons-Harris._ Hey look! Another 5-4 case with three of the five being the same guys that decided this one… Let this be a lesson as to how easy it is to move jurisprudence pretty far if you get a strong block on the court. And how easy it is to justify your decisions if you get to use yourself as a precedent. It all goes back to **Skammer** ’s comment - if Bush loses in either 2000 or 2004 this case is almost certainly decided the other way. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 29, 2011, 5:49pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/45 "2011-06-29T17:49:37Z")
> [@Jas09](#): > > Hey look! Another 5-4 case with three of the five being the same guys that decided this one… > > Let this be a lesson as to how easy it is to move jurisprudence pretty far if you get a strong block on the court. And how easy it is to justify your decisions if you get to use yourself as a precedent. > > It all goes back to **Skammer** ’s comment - if Bush loses in either 2000 or 2004 this case is almost certainly decided the other way. Really? Which _Zelman v. Simmons-Harris_ justices did Bush appoint? ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [June 29, 2011, 5:55pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/46 "2011-06-29T17:55:55Z")
> [@Bricker](#): > > Really? Which _Zelman v. Simmons-Harris_ justices did Bush appoint? I was unclear. The “this decision” in my post was referring to the Arizona case. Obviously Alito and Roberts were the two that Bush appointed involved in that decision. Liberal justices in either of those seats would likely have resulted in the Arizona law being upheld, IMO. My point was that by maintaining the strong conservative block (by replacing Rehnquist with Roberts and O’Conner with Alito), Bush ensured that the court would continue down the path it was on. There isn’t anything “wrong” with that, but it does point out the importance of considering the Supreme Court when considering presidential elections. And also illustrates that “established jurisprudence”, at least in the last few decades, basically means “what the conservative block of SCOTUS decided”. This is even more apparent in the areas where there have been reasonably large movements - campaign-finance being a large one. ETA: From what I can tell the Arizona decision was based largely on _Davis_, which was decided 5-4 with Alito and Roberts in the majority. I do believe that had Gore won in 2000 (or even McCain, for obvious reasons), the result would have been different. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 29, 2011, 5:56pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/47 "2011-06-29T17:56:52Z")
> [@Miller](#): > > I don’t see anywhere in the first amendment that forbids this. Must be in one of those penumbras you’re always railing against. How foolish would it be for me to accept the results of textualism only when it cuts against my preferred public policy position, and meekly accept them when I disfavor the result? In Monopoly, the official rules state clearly that “Free Parking” is simply a resting place – there is no penalty, and no reward, for landing on it. But many people have “house rules” in which fines paid to the bank and even house payments go instead into the Free Parking pot, and landing on that square becomes a lottery win. I hate those rules. I always argued strongly against playing with them. But if the issue was decided against me, of course I took the money if I landed on Free Parking. To do otherwise would have been a tremendous disadvantage in the game. There’s a big difference between saying, as I do, that the country would be better off if every judge believed in and applied the principles of textualism and judicial minimalism, and between saying that I should accept those results when I don’t like them but smile serenely when they are not used. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 29, 2011, 5:58pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/48 "2011-06-29T17:58:22Z")
> [@Jas09](#): > > I was unclear. The “this decision” in my post was referring to the Arizona case. Obviously Alito and Roberts were the two that Bush appointed involved in that decision. Liberal justices in either of those seats would likely have resulted in the Arizona law being upheld, IMO. > > My point was that by maintaining the strong conservative block (by replacing Rehnquist with Roberts and O’Conner with Alito), Bush ensured that the court would continue down the path it was on. So the liberal judges, had they been appointed, would have ignored the _stare decisis_ of Zelman v. Simmons-Harris and Buckley v. Valleo? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 29, 2011, 6:31pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/49 "2011-06-29T18:31:52Z")
> [@Bricker](#): > > So the liberal judges, had they been appointed, would have ignored the _stare decisis_ of Zelman v. Simmons-Harris and Buckley v. Valleo? Come now, counsellor. Let’s not think of _stare decisis_ in such a mystical way. One of the purposes of the Nine is to decide when its effect is outweighed by other concerns. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [June 29, 2011, 6:36pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/50 "2011-06-29T18:36:14Z")
> [@Bricker](#): > > So the liberal judges, had they been appointed, would have ignored the _stare decisis_ of Zelman v. Simmons-Harris and Buckley v. Valleo? Not necessarily. But they needn’t have broadened it from saying that campaign contributions are a form of free speech to saying that state-funded donations to opposing candidates are a violation. Alternatively, they may have found (as the dissenters did) that there is a government interest in maintaining corruption-free elections, and that this law, even if it contained minor infringements (by reducing the effectiveness of political speech) didn’t cause a large enough infringement to override this interest. Finally, maybe they would have ignored it - it’s not like the court hasn’t overturned previous decisions before. One might note that both Thomas and Scalia have argued that _Buckley_ itself should be overturned. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 29, 2011, 6:42pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/51 "2011-06-29T18:42:37Z")
> [@villa](#): > > Come now, counsellor. Let’s not think of _stare decisis_ in such a mystical way. One of the purposes of the Nine is to decide when its effect is outweighed by other concerns. > [@Jas09](#): > > Not necessarily. But they needn’t have broadened it from saying that campaign contributions are a form of free speech to saying that state-funded donations to opposing candidates are a violation. Fair enough. > [@](#): > > Alternatively, they may have found (as the dissenters did) that there is a government interest in maintaining corruption-free elections, and that this law, even if it contained minor infringements (by reducing the effectiveness of political speech) didn’t cause a large enough infringement to override this interest. And fair enough. > [@](#): > > Finally, maybe they would have ignored it - it’s not like the court hasn’t overturned previous decisions before. One might note that both Thomas and Scalia have argued that _Buckley_ itself should be overturned. Not so fair. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [June 29, 2011, 6:46pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/52 "2011-06-29T18:46:10Z")
> [@Bricker](#): > > Not so fair. Why not? Maybe I’m missing a distinction here (I’m not a lawyer, remember), but didn’t SCOTUS overturn all of _Austin_ and parts of _McConnell_ in _Citizen’s United_? Why couldn’t a liberal court have done the same thing here - use this case a foundation for reversing the holding that campaign contributions are speech at all? I’m not saying they should, or that it’s necessary for this case, but why couldn’t they? What’s “not so fair” about it? ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [June 29, 2011, 7:17pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/53 "2011-06-29T19:17:36Z")
> [@Bricker](#): > > There’s a big difference between saying, as I do, that the country would be better off if every judge believed in and applied the principles of textualism and judicial minimalism, and between saying that I should accept those results when I don’t like them but smile serenely when they are not used. I would think that the consistent position would be to be dissatisfied whenever a incorrect process is used, regardless of how you feel about the results. Apparently, I was wrong, and penumbras are, in fact, only bad when they’re used to deliver a result with which one disagrees. Which is a pity, because on previous topics, such as gay rights, you’d managed to convince me that, as much as I favor the outcome, it would not be desirable for the Supreme Court to suddenly discover a right to SSM in the constitution. In light of your reaction to this issue, perhaps that’s something I’ll need to rethink. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 29, 2011, 8:10pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/54 "2011-06-29T20:10:03Z")
> [@Jas09](#): > > Why not? Maybe I’m missing a distinction here (I’m not a lawyer, remember), but didn’t SCOTUS overturn all of _Austin_ and parts of _McConnell_ in _Citizen’s United_? Why couldn’t a liberal court have done the same thing here - use this case a foundation for reversing the holding that campaign contributions are speech at all? > > I’m not saying they should, or that it’s necessary for this case, but why couldn’t they? What’s “not so fair” about it? I think **Bricker** was more complaining about your language - when you said “ignore it.” Overruling it is one thing, and when it is done it should be explicit. Just ignoring cases does happen, but it is sloppy law and leads to conflicts in the future. Looking back at what you said, I think it is clear by ignore you meant overrule. And that’s fair, if you mean by “it” the precedent value of the prior decision. There’s nothing wrong with overruling cases. Pretending they aren’t there isn’t a good thing though. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [June 29, 2011, 8:49pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/55 "2011-06-29T20:49:56Z")
Gotcha. If that’s the case then amend my post to read “overrule” in place of “ignore”. I don’t think it’s much of a stretch to think that replacing Alito with a more liberal justice would have resulted in a 5-4 decision along the lines of Kagan’s dissent. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 29, 2011, 9:33pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/56 "2011-06-29T21:33:04Z")
> [@Fenris](#): > > That’s an idiotic analogy. > > Let’s try an accurate one. The Times outsells the Post by, say, 3 to 1\*. So the Post has less freedom of speech than the Times (by your reasoning) Therefore, to make the playing field equal, the government should give the Post money to equal the difference in their sales. I think the analogy is valid. Suppose the people of New York decided they wanted to keep two daily newspapers in print and were willing to pay to do it. So they passed a law that said if any newspaper sells less than a million copies a day, the state will buy enough copies to bring it up to a million. Now let’s assume the Times sells a million copies and the Post only sells 300,000 copies. So the state buys 700,000 copies of the Post. How was the Times harmed by this? They sold the same million they would have without the law being in existence. The only standard by which they were “harmed” was by not being able to outsell the Post. Now show me in the Constitution where is says the Times has a right to sell more papers than its competitors. A newspaper has a right to publish; not a right to win circulation wars. The government is not acting unconstitutionally unless it’s doing something that hurts the Times’ circulation. As for whether or not this is a good idea, that’s for the people to decide. If they decide that buying newspapers is a good use of their money, the Supreme Court does not have the right to veto the law because it thinks it’s a bad idea. The Court is only supposed to rule on constitutional issues not whether it agrees with a law. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 29, 2011, 10:37pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/57 "2011-06-29T22:37:05Z")
> [@Bricker](#): > > So the liberal judges, had they been appointed, would have ignored the _stare decisis_ of Zelman v. Simmons-Harris and Buckley v. Valleo? You know it’s not as impartial a procedure as you’re pretending. There are thousands of precedents out there. The justices decide which ones are applicable to this case. They make decisions about what words and phrases mean. A different set of justices could make different decisions and arrive at a different conclusion and their decision would have just as much legal backing. Why is it that conservatives are so ready to accuse justices like Warren and Brennan and Douglas and Marshall of being judicial activists who made their decisions for ideological reasons but deny the possibility when the same accusation is made against Roberts and Alito and Scalia and Thomas? Not simply denying that they’re doing it but denying that it would even be possible for them to do it - that their decisions are beyond question and it’s wrong to even raise the issue of ideological bias. Why is it impossible for a conservative justice to be a judical activist? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [June 29, 2011, 11:03pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/58 "2011-06-29T23:03:28Z")
> [@Marley23](#): > > **ElvisL1ves** , you should know the rules by now: attack the argument, not the poster. You have been failing to keep this in mind regarding **Bricker** and you need to shape up. While your efforts and intentions are laudable, you’re off-target here. When the basis of the “argument” IS the poster’s worldview, and is yet another display of a “style” of “argument” that is quite well established and has been quite broadly and frequently commented upon as being indistinguishable at its heart from gameplaying and partisanism, _as you know_, it is not possible to draw that distinction. Perhaps you could help uplift the tone of this board by moderating against such practices, rather than the necessary responses to it. More specifically, in this case, **Bricker** ’s current “argument” is against democracy _itself_, and it is certainly “attacking the argument” to point that out. ---
**Author:** ![Alan\_Smithee](https://avatars.discourse-cdn.com/v4/letter/a/2acd7d/32.png) [@Alan\_Smithee](https://boards.straightdope.com/u/Alan_Smithee)\ **Post date:** [June 29, 2011, 11:04pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/59 "2011-06-29T23:04:44Z")
> [@Fenris](#): > > That’s an idiotic analogy. > > Let’s try an accurate one. The Times outsells the Post by, say, 3 to 1\*. So the Post has less freedom of speech than the Times (by your reasoning) Therefore, to make the playing field equal, the government should give the Post money to equal the difference in their sales. Or maybe ClearChannel and Premier Broadcasting file suit to shut down NPR, since federal funding for NPR infringes on their rights to free speech. Aha! Now I see the _real_ agenda here! ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [June 29, 2011, 11:21pm UTC](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164/60 "2011-06-29T23:21:08Z")
Still not comparable. Let’s get real - free speech in a campaign doesn’t mean diddly in itself; _winning the election_ does. There is no comparable ultimate goal in the newspaper analogy. The case is about making a funding advantage turn into an electoral advantage, and preserving that advantage from being leveled in any way. It is hardly coincidental that the GOP-partisan wing of the Court has found a way to decide it this way, on the pretext of free speech rights, rather than on the broader principle of preserving/protecting/defending the needs of democracy _itself_. [Previous page](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164.md?page=2) [Next page](https://boards.straightdope.com/t/scotus-rules-against-arizona-campaign-finance-law/587164.md?page=4)